YouTube Won't Put Your Video Back Up, Even If It's Fair Use, If It Contains Content From Universal Music

from the that's-a-shame dept

Patrick McKay, who has been a harsh critic of some of YouTube's failings when it comes to the DMCA process and various takedowns, has highlighted a very serious issue with YouTube that has received little attention. YouTube now admits that, when it comes to some videos that contain content from certain "partner" companies, it won't repost those videos, even if the video uploaders file a counternotice and show that they're relying on fair use. YouTube claims that it will still keep some of those videos blocked due to "contractual" obligations:

YouTube enters into agreements with certain music copyright owners to allow use of their sound recordings and musical compositions.

In exchange for this, some of these music copyright owners require us to handle videos containing their sound recordings and/or musical works in ways that differ from the usual processes on YouTube. Under these contracts, we may be required to remove specific videos from the site, block specific videos in certain territories, or prevent specific videos from being reinstated after a counter notification. In some instances, this may mean the Content ID appeals and/or counter notification processes will not be available. Your account will not be penalized at this time.

If this sounds vaguely familiar to something in the past, you may recall that a few years ago, Universal Music and Megaupload got into a bit of a spat when UMG issued a questionable takedown of a song promoting Megaupload, which featured a ton of big stars singing the praises (literally) of Megaupload. Megaupload eventually sued UMG, but ended up dropping that lawsuit as a month or so later it had bigger legal issues on its hands, following the US's decision to shut down Megaupload. But, at the time, Universal Music made a strange claim that it had some sort of contractual agreement that allowed it take down videos like Megaupload's. YouTube quickly came out with a statement denying this, but the situations described in McKay's post certainly raise serious questions about this, and clearly suggest that YouTube has made at least some deals that effectively wipe out fair use for some users. I assume it will surprise next to no one that the key example that led McKay to discover this situation... also involved Universal Music.

As I noted at the time of that UMG/Megaupload spat that I believed the real issue might be YouTube's contract with Universal Music for Vevo -- and I suspect that's still the case now. As I said then, part of the "announced" deal was that as part of providing the backend for Vevo, YouTube would transfer over the videos of various UMG artists, such that they appeared exclusively on Vevo. I suspect that's the same thing happening here. Because part of the Vevo deal is a promise that Vevo gets exclusive rights to videos involving certain artists' works, it allows YouTube to simply ignore fair use claims from users on such content, and refuse to ever post them again.

Now, as McKay notes, this is (mostly) well within YouTube's rights. I remember, a few years back, seeing a discussion on some legal blogs about this question. The DMCA implies that if you file a legitimate counternotice following a DMCA takedown and if the copyright holder does not take further legal action, the service provider is obligated to put the work back up in no less than 10, but no more than 14 business days. But, to some extent, that seems questionable. After all, as a service provider, any site has the right to not allow certain content to be published if it doesn't want to. And yet, if read literally, some could make the argument that the DMCA obligates a service provider to put up content even if it doesn't want to. As McKay notes, in this manner, the only liability is to the person who filed the counternotice, and any such liability would likely be pretty limited.

Either way, there's no way to look at this that makes YouTube look good. Following so soon on our other story about YouTube taking down a video on a questionable "terms of service" violation and then refusing to repost the video, it's once again a situation where it seems like YouTube needs to do a much better job handling these situations. While we obviously don't know the details of the UMG contract, fair use rights cannot be signed away, especially by two third parties. It would be a shame if YouTube decided that it would arbitrarily give UMG the ability to deny someone's fair use rights in posting a video.

Reader Comments

Now, while Youtube, as a private company, would usually have the right to say what can and cannot be published on their website...in my opinion, that simply isn't true for them. Again, in my opinion, that would hold true if they selectively chose which videos to allow to be uploaded, but they don't. All you have to do is upload a video and its viewable, at least until a third party blocks it on copyright grounds. Youtube are (or were) a neutral third party, providing the box on which anyone could stand and make speech. Now, they're running around being selective.

It's the wording that outrages me. I'd be pissed but forced to agree if Youtube had an ethos or something. For example, if they were a religious website and actively said that no-one could upload videos praising other religions. However, here, they are denying people's right to free speech, while at the same time, saying they're acting as a neutral medium. I have never seen a law that says you must deny fair use claims, never mind ContentID itself.

I too am a producer of videos, although obviously I am not a very famous one. With this, I am no longer going to upload my videos to Youtube. I will upload one more, to explain why.

Youtube, it was the USERS and VIEWERS who made you what you are. The hundreds of millions of people who used your service. Not the copyright industry. I didn't see the copyright industry being involved in the Arab Spring. I saw people using Youtube as a tool for free speech in harsh, dictatorial nations. Well, you have now turned your back on everything you ever claimed to represent. You have only re-affirmed my hatred for copyright: even by going through every single possible motion to stay within the law, Patrick McKay is denied service, not through any fault of his own, but because you continually feel as if you must bend over for the copyright cartels.

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Now, while Youtube, as a private company, would usually have the right to say what can and cannot be published on their website...in my opinion, that simply isn't true for them. Again, in my opinion, that would hold true if they selectively chose which videos to allow to be uploaded, but they don't. All you have to do is upload a video and its viewable, at least until a third party blocks it on copyright grounds. Youtube are (or were) a neutral third party, providing the box on which anyone could stand and make speech. Now, they're running around being selective.

I don't think that's an entirely accurate characterization. Youtube already blocks/removes certain videos because of a handful of things prohibited in its terms of service, some of which are completely legal:
-Sexual content
-Violent or repulsive content
-Hateful or abusive content
-Harmful dangerous acts
-Child abuse
-Spam or misleading
-Infringes my rights
-Captions report (CVAA)
To me this just smacks as another "voluntary partnership" like the six strikes, where while there is no legal mandate to do anything, the service providers can still go beyond what the law calls for.

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I was referring primarily to "Six Strikes," as that was what I quoted. I agree that they don't need to be protected from fair use, but I think that much of what is labelled as "fair use" from anti-copyright, pro-tech bloggers such as Mike is probably not actually so.

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I agree. Youtube's terms of service probably say it can remove videos for a variety of reasons. The liability for not re-posting content probably applies more when you are paying a web hosting site. I understand that youtube is obviously getting something from its contract with Universal, but if the policy hurts its users, why have it?

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"they are denying people's right to free speech"

No they aren't. Freedom of speech does not imply a right to speak on any private property you care to use. I can't stand in your living room and shout obscenities at your family and then whine about free speech when you call the cops to have me removed.

If anyone still need any further reason to boycott Universal and pirate their stuff without a single vestige of remorse then I'd guess this is a very compelling argument. I think Universal comes right below Disney and Sony in the bottom worst of humanity (or above depending on how you see it heh).

Other than that it's more of the same. The MAFIAA crippling services they touch (and that let them have their ways). This is only bad for Youtube and Google in the long term. Once people get fed up enough they'll turn to better/alternative platforms. Daily Motion/similar come to mind.

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I did. But the article still suggests that fair use somehow compels a service like YouTube to display such works. It doesn't. YouTube doesn't have to run anything it doesn't want to and needn't give a reason.

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Please define "right" and "privilege." If copyright is merely a privilege, then how do copyright owners have the ability to sue others who engage in copying? If fair use is a right, then why don't fair users have the ability to sue others who interfere with their exercise of that right?

You have it backwards. Reading TD will rot your brain--and lead you to make silly claims such as these.

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In a world without laws, anyone can copy anything and there's nothing wrong with it (it's not against the law). It is our right, and it's in our nature. Copying is how we learn everything!

Along comes copyright law and says only the creator can make a copy of certain artistic works. That is a privileged given by the law. Just like it's a privilege to drive a car. It's not a right, despite what it's called.

However the law recognizes that it's beneficial and necessary for some copying to occur without the creator's permission - that is fair use. It's recognizing everyone's natural right to copy in special circumstances, such as criticism and commentary, or for education.

The creator doesn't have absolute control over their creation, because artistic works are a part of culture, and culture belongs to everyone. You don't need permission to make a cultural reference.

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I don't see how that distinction matters.

It matters when too many rights holders think that fair use requires some sort of permission. It leads to the diminishing of the Fair Use Doctrine by way of "attrition litigation" . Those with the deepest legal war chests win. Kind of negates the "fair" part of Fair Use.

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I don't think there's any rightholders who think that fair use requires permission.

FWIW we were recently threatened with a lawsuit from a news organization that said that we needed to first contact them and get "fair use permission" to quote their articles. We were further told that until we came to a "fair use agreement" we were forbidden from quoting anything on their site.

So, yes, there are some rightsholders who incorrectly do believe fair use requires permission.

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"Oh, I was wrong."

FTFY

Well, I'd want to talk to the people Mike is referring to to see what their side is. I find it hard to believe that a sophisticated rightholder would call getting permission the same thing as fair use. You're assuming Mike's version is accurate.

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I find it hard to believe that a sophisticated rightholder would call getting permission the same thing as fair use. You're assuming Mike's version is accurate.

The following is quoted verbatim from the email exchange we had. This was a portion of the third email. The first complained that we were quoting too much without permission. My reply was that this was not true (highlighting how little we quoted from his publication, and also explaining why we believed our use was covered by fair use). This was a part of his reply (I left out some irrelevant stuff, and then disguised the name of the publication because I see no value in publicly revealing who it was). He clearly suggests we need to negotiate fair use.

FWIW, I *will* say that this publication is based in another country, which has a more limited fair dealing structure, so perhaps that is part of the publisher's confusion.

For what it's worth, I've been on both sides of this kind of process before. I've received communications from other publishers who believe that publications I have worked for have infringed their copyright by grabbing too liberally from their articles. And I have in various roles also communicated with other publishers, who -- as in this case
-- I believe have used my own content too much.

Usually I find that these situations can be negotiated amicably in good faith, and I was surprised to receive your email and your strong rejection of my request, especially given that Techdirt is one of the global leading publications reporting on copyright issues.

I'm still willing to discuss an amicable outcome based on a mutually agreed definition of fair use.

But until that occurs, please consider this email notification until further notice that I exert my copyright rights and explicitly deny Techdirt permission to use any content owned by **********. If such use
does occur in future, I will publish an article highlighting to *********'s own readers that I consider such use a breach of copyright.

As noted, this publisher believes that you need to agree on fair use, and until such time they can ban you from quoting anything. So, as stated, here is a sophisticated rightsholder (this publication also writes about IP issues quite frequently) believing that "fair use" requires permission.

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I appreciate the substantive response, and I note my wish that you would be more engaging when it's not a simple point like this--in other words, I wish you'd be more engaging on the harder issues. That said, I don't read as much into this as you do. This party clearly thinks that your use is NOT fair, so the negotiations are not about you actually making fair use of the material. The negotiations are over the scope of your nonexclusive license. This party explicitly says that they think your proposed use, without permission, would be infringement. I think the statement about "mutually agreed definition of fair use" was this party using the term "fair use" in a way other than it's technical, legal meaning, as clearly fair use requires no permission.

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I think the statement about "mutually agreed definition of fair use" was this party using the term "fair use" in a way other than it's technical, legal meaning, as clearly fair use requires no permission.

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I haven't moved the goalposts at all. Mike's emails--to the extent he's shared them with us--only prove me right. When it's fair use, this guy doesn't contact people about giving them permission. It's only when he thinks the use is not fair that he reaches out to people he thinks are infringing.

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Just to clarify my point: This party reached out to you because he felt you "used [his] own content too much." In other words, he only contacted you BECAUSE he didn't think your use was fair and BECAUSE he thought you needed permission to make unfair use of his work. This shows that he knows that fair use doesn't need permission--it's only when the use is NOT fair does permission need to be obtained. That's why he contacted you. If he felt your use was fair, he would not have contacted you about giving you permission. So I think your read is incorrect. You are saying that he both understands that fair use needs no permission yet thinks fair use needs permission. That's nonsensical. So when he spoke of "mutually agreed definition of fair use," I think in context it's clear that he thinks that permission is needed because he thinks your use wasn't fair. What he really meant was that he wanted to come to an agreement about the scope of your permission to use his work--which was needed, in his opinion, since your use wasn't fair to begin with.

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Your read is clearly incorrect. Otherwise, he would not have also stated that until we come to an agreed upon definition of fair use that we are forbidden from quoting anything.

He only contacted you BECAUSE he thought you used "too much" of his content. If you hadn't used "too much," i.e., if he thought your use was fair, then he wouldn't have contacted you. I just don't see how you think he understands that fair use needs no permission yet you think he thinks fair use means getting permission. It just doesn't add up. Unless you want to get him here to explain, I suppose we'll just have to disagree. I suspect that he would side with my interpretation since it makes more sense. If he is really sophisticated, then he knows that there's no agreement needed to make fair use of a work.

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You're just reading too much into it.

If you hadn't quoted what he thought was "too much," he wouldn't have contacted you. Ergo, when he thinks it's fair use, he knows that no permission is needed and he doesn't contact people. Ergo, he understands fair use. You haven't addressed this point, nor do I think you can. He clearly only contacted you BECAUSE he thought you were using too much and that it wasn't fair use. If he thought your use was fair, he wouldn't have contacted you.

When he says "I exert my copyright rights and explicitly deny Techdirt permission to use any content," he's only covering his ass and making it 100% clear that you don't have permission to use ANY of his work. You clearly can, under fair use, make certain uses of his work without permission. But he was making sure that you knew that you did not have his permission to use any of it.

This is so minor and silly. I'm not surprised you're willing to engage me on it, since I find you ONLY engage people on the minor and silly stuff. It's just sad that you aren't this engaging when it's something that really matters. But the fact remains that he ONLY contacted you because he believed that you "used [his] own content too much," and that if he had agreed that your use was fair, HE WOULD NOT HAVE CONTACTED YOU. So, HE FREAKING KNOWS THAT FAIR USE REQUIRES NO PERMISSION. You're just grasping at straws with this.

If you hadn't quoted what he thought was "too much," he wouldn't have contacted you. Ergo, when he thinks it's fair use, he knows that no permission is needed and he doesn't contact people. Ergo, he understands fair use.

You keep saying this. And you're wrong every time. Look, you can admit you were wrong. It's not that hard.

He clearly states in his email that we need to come to an agreement about what fair use is. You insisted no rights holder would say that. You are wrong.

He further stated that I was not to quote ANYTHING from him until such a fair use agreement is reached.

Clearly any sane person reading that email will see that he believes you need permission for fair use quoting.

You could admit that you were wrong, but you won't.

And, once again, we see why engaging with you is a losing proposition.

No offense, but you really are showing your true colors yet again.

I'm out. You will lie and claim I have run away again, when all we've seen is that I tried, yet again (stupidly) to engage with you and saw (yet again) that you do the same shit: you move the goalposts, you lie, and you refuse to admit that you were wrong. 100% wrong.

Wow. Defensive much? I can tell I'm winning by how angry you get. You haven't answered the question.

Yes or No: If he thought your use was fair, would he have contacted you?

He contacted you because he thought you quoted too much, i.e., because he thought you weren't making fair use of his work. This implies that if he thought your use was fair, then he would not have contacted you.

I'm not wrong, I'm looking at the whole context. You still have not, nor do I think will you ever, answer my simple question. You won't answer it because you know once you admit that, the rest of your argument falls apart.

Again, though, this is silly minor stuff. Why won't you engage me about something that actually matters? What are you scared of, Mike? Am I really that intimidating?

Yeah, right. The ONLY reason he engaged me here was because he thought he had me. He thought he could prove me wrong. Anything just to score a point. Then he produced part of the email where the guy says he contacted Mike BECAUSE he thought Mike had used "too much." In context, I think it's clear that had he thought Mike not used "too much," then he wouldn't have contacted him. Hence, this guy knows that fair use requires no permission. Mike's just mad because he knows I'm making a good point. Regardless, Mike doesn't engage me on the hard stuff because he knows I mop the floor with him every time, and he knows what a fool he looks like when he tries. It's hilarious. I love this place.

Ha! I've tried. This discussion here is a microcosm of why engaging with you is a total waste of time.

The other day you complained that you hate engaging with Karl because it's like talking to a brick wall. That's hilarious. Because you're worse than a brick wall. You engage in logical fallacy after logical fallacy and when proved wrong you just move the goalposts.

I engaged here, because you made a factual statement that was easily proven wrong, so I did so. And then you moved the goalposts, and went into your usual schtick, proving, once again, that engaging with a 2 year old throwing a temper tantrum is a waste of time.

Either way, notice that not a single person things you're an honest debater in these discussions? Perhaps it's because you're not.

I have no fear debating with people who actually know what they're talking about and debate honestly. I've just been scheduled to debate two high level execs from the movie industry. I'm looking forward to it, because unlike you, they don't debate like a 2 year old throwing a temper tantrum.

Great. I'm glad you're back. Now what about my point that he said he contacted you because he thought you used "too much"? Do you see my point there that this implies that had he thought you hadn't used "too much," then he wouldn't have contacted you? Can you address this?

I have no fear debating with people who actually know what they're talking about and debate honestly. I've just been scheduled to debate two high level execs from the movie industry. I'm looking forward to it, because unlike you, they don't debate like a 2 year old throwing a temper tantrum.

And I'll sure you'll do a great job with whatever the topic of debate is. I know you're a smart guy, and there's many topics that you'd kick my butt on. But pretending like I'm a two-year-old and not worth debating is just a silly excuse, and you know it. I want to talk about the difficult issues. I want to talk about your personal beliefs. You don't want to debate me on those issues because you don't want to want to go there. You know I'd ask questions that you don't want to answer. I feel sorry for you that you have to make these silly excuses. I really do think you're smart, and I honestly want to have those conversations with you in good faith. The fact that you're so unwilling to go there tells me that you're embarrassed to discuss those issues. You don't have to hide, Mike. It won't be that bad, I promise. Just be open and honest. I promise I'll do the same. I'll answer any of your questions directly and honestly. Why can't you do the same?

I wonder if aj really thinks he's mopping the floor with Mike and that he's a great debater and we all misunderstand him, or he's just a pure troll who finds it hilarious to annoy Mike so much. I honestly can't tell. If he's a troll, he's the most committed (and maybe smartest) one I've ever seen. Unfortunately he can't answer the question because regardless of which one he is he would deny being a troll.

He contacted you because he thought you quoted too much, i.e., because he thought you weren't making fair use of his work.

Yes, he thought Mike wasn't making fair use of his work, because he hadn't given him permission. Why are you leaving that part out? The guy explicitly said that if we don't agree on what is fair use, you cannot use any of my work. That isn't how fair use works. You know it, but that guy clearly did not.

He says: "And I have in various roles also communicated with other publishers, who -- as in this case -- I believe have used my own content too much."

The contact is made when he thinks someone is using "too much" of his content. He doesn't make content for every use of his content, only use that he thinks is "too much." It's a simple point, and the fact that Mike got all mad and starting calling me a child and ran away rather than just address it is quite telling.

I'm not leaving out the fact that he explicitly said that they should come to an agreement over fair use. I absolutely, 100% admit that words to that effect were used. But I'm putting things in context, and Mike has yet to address my point. I find it unbelievable that a sophisticated rightholder who says he contacts people when he thinks they've used "too much" also thinks that all use requires permission. It's just not plausible.

"I'm still willing to discuss an amicable outcome based on a mutually agreed definition of fair use. But until that occurs, please consider this email notification until further notice that I exert my copyright rights and explicitly deny Techdirt permission to use any content owned by **********."

It's perfectly clear to everyone else. This guy thinks that he gets to decide what is and what is not fair use, and if he decides that Mike's use isn't fair, he can withhold permission.

I find it unbelievable that a sophisticated rightholder who says he contacts people when he thinks they've used "too much" also thinks that all use requires permission. It's just not plausible.

Who said anything about sophistication? And why are you denying what's right in front of you? I just quoted, again, the part that states exactly what you say it doesn't. I mean really, I hate admitting I'm wrong more than most people, but you're really taking it to an extreme here.

No, Mike has not addressed the fact that this guy said he contacted Mike because he thought Mike used "too much." I've asked Mike to address this point specifically, and Mike has not. Nor will he, because he can't figure out how to brush it off.

Who said anything about sophistication?

Mike said this guy is sophisticated. Read above.

And why are you denying what's right in front of you?

For the reasons I've stated numerous times already. This guy contacted Mike because he thought Mike used "too much." This guy is a sophisticated rightholder. It just doesn't add up. Mike can simply ask this guy what he believes, and then he'd have his answer. Despite his comment about agreeing upon fair use, I still think his comment about contacting Mike because he thinks Mike used "too much" shows that this guy knows that fair use requires no permission. If all he said were the comment about agreeing upon fair use, I would gladly concede. But I find it impossible to believe that this guy thinks all fair use requires permission because (1) he said he contacted Mike because he thought Mike used "too much," (2) he's a sophisticated rightholder who surely understands copyright 101. Cherry-picking one part as Mike is doing doesn't address the bigger context. Plus, Mike is not giving us the emails so we see what else was said. I'm sure there's more that we're not seeing that is relevant.

No, Mike has not addressed the fact that this guy said he contacted Mike because he thought Mike used "too much."

I don't see how that advances your argument. If he had said "you're using such a large quantity that in my opinion your use would not qualify as fair use" that would be one thing. But you seem to be just assuming that's what he meant by "too much", whereas it seems much simpler to assume he meant "more than I like". And that fits perfectly with his expressed opinion that Mike needs permission to use ANY of his writing.

I don't see how that advances your argument. If he had said "you're using such a large quantity that in my opinion your use would not qualify as fair use" that would be one thing. But you seem to be just assuming that's what he meant by "too much", whereas it seems much simpler to assume he meant "more than I like". And that fits perfectly with his expressed opinion that Mike needs permission to use ANY of his writing.

If he thought that ANY use requires permission, as Mike intimates, then he would not have said that he contacted Mike because he thought Mike used "too much." He would have merely said that he was reaching out because Mike used ANY of his material. This isn't hard.

If he thought that ANY use requires permission, as Mike intimates, then he would not have said that he contacted Mike because he thought Mike used "too much."

That's a non sequitur. Did I spell that right? "Too much" could mean "more than I would be willing to give permission for". If it's little enough that he would be willing to give permission, then obviously he wouldn't contact Mike to tell him he can have permission. That would be a waste of time. There's just no evidence that "too much" means what you say it means, and the alternative meaning makes much more sense with the context of the other things the guy said.

Rather than taking childish digs at me in order to impress your readers, why don't you address the question I've asked several times?

Here it is (again): Why would he say that he contacted you because he thought you used "too much," if, as you claim, he thinks ANY use requires permission? Wouldn't he just have said, "I've contacted you because you used SOME of my work"?

AJ, when you're my boss, then you can order me around. Until then, anyone with any sense (i.e., everyone else here) has seen already that I answered your question, tried to have a discussion with you... and came to the same result as always: you moving the goalposts and making stupid logical errors and whining about me not playing your games.

Why is it that no one else agrees with your ridiculous interpretation? Answer? Because you're wrong.

I'm not ordering you around. Please stop with the deflection. You HAVE NOT explained why he said he contacted you because he thought you used "too much," if, as you claim, he thinks that ANY use requires permission. Just answer the question. What's the big deal that you can't address my point?

By the way, Mike. I know you won't answer my simple question because I know you're in damage-control mode and your only goal is to discredit me so that your fans don't notice that you're refusing to answer the question. My question to you is: Doesn't this get old? Seriously. Just answer my question and let's end this conversation by having addressed each others' points rather than your name calling, evasion, and running away. What are you so scared of? It's such a minor point on such a minor issue. I don't get why you can't even have an honest conversation about this. Do I really threaten you THAT much? Wow. Just wow, dude. Seriously, man. What gives? Just answer the question. No more excuses. Thanks!

Ha! Damage control? From an anonymous commenter who EVERY SINGLE other commenter here has said is wrong?

You make me laugh.

My question to you is: Doesn't this get old? Seriously. Just answer my question and let's end this conversation by having addressed each others' points rather than your name calling, evasion, and running away.

I should ask you the same question. Doesn't it get old? I answer your question and you move the goal posts and you lie and you build a strawman Mike and pretend stuff that is obviously untrue. And then you whine on unrelated posts. Doesn't it get old? Seriously. Just admit that you're wrong and move on. Stop acting like a two year old throwing a temper tantrum.

What are you so scared of?

This is what I mean. I'm not scared of you. It's just "engaging" with you is a complete and total waste of time, because you don't discuss ANYTHING honestly.

I debate things with people who debate honestly, who don't use logical fallacies, who don't act like children and who don't move the goal posts all the time. And it's BULLSHIT and you know it when you claim I don't answer your questions. I do. And then you insist I didn't.

Because you're too immature to admit that you were wrong.

Give it up. Grow up.

I don't get why you can't even have an honest conversation about this.

All that, and you still haven't the question I've asked several times: Why would he have said he contacted you because he thought you used "too much," if, as you claim, he thinks that ANY use requires permission. Can you not just answer this question? I don't care about all that other stuff. I just want an honest and direct answer on this question you have avoided several times. Thanks!

But even if he had, it still doesn't mean jackshit concerning the original point on this thread. I guess I'm just trying to understand why AJ has decided to obsess over this particular minor point, is all.

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No, he's saying that if a 3rd party are requiring them to take down an otherwise perfectly legal video, that's a bunch of crap. In case you didn't notice, YouTube *were* displaying these videos until Universal wanted to piss on everybody's legal rights.

the points raised:
a) if the entertainment industries can squash the (re)posting of videos, how long before they try to say that as certain items were not fought for reupping, there's no need to have any 'fair use' at all
b) youtube cant do a better job than it already is because there are no people checking what is being handled by automatic processes. no human intervention, no changes made
c) regardless of what UMG wants, what gives them the right to override fair use any way?
d) if youtube is allowed to do this sort of thing, why not be honest about it and state the real reason why this something has happened. stop pretending that it is something the uploader has done wrong.
e) start having humans speak to people when there is a dispute of any sort, instead of just posting out ridiculous auto messages
f) stop doing 'back room deals' that harm customers, just to please a backward industry that keeps spiting out the dummy when it cant have it's own way!

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The DMCA implies that if you file a legitimate counternotice following a DMCA takedown and if the copyright holder does not take further legal action, the service provider is obligated to put the work back up in no less than 10, but no more than 14 business days. But, to some extent, that seems questionable. After all, as a service provider, any site has the right to not allow certain content to be published if it doesn't want to. And yet, if read literally, some could make the argument that the DMCA obligates a service provider to put up content even if it doesn't want to.

Strange how you discuss the text of the DMCA without providing and discussing the actual text. You're referring to Section 512(g)(1)-(2):

(g) Replacement of removed or disabled material and limitation on other liability.--

(1) No liability for taking down generally.-- Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.

(2) Exception.--Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider--

(A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;

(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and

(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider's system or network.

By not replacing the material in the 10-14 day period under 512(g)(2)(C), it only means that the service provider can't get the limitation on liability given under Section 512(g)(1). YouTube doesn't need that limitation on liability since it has no obligation to allow users to post videos on its system in the first place. So I completely disagree with your argument that one could read the statute to mean "the DMCA obligates a service provider to put up content even if it doesn't want to." No it doesn't. Not at all. It merely says that the material must be reposted in that window in order to get that limitation on liability. If there's no liability for taking down materials in the first place, then that limitation isn't even needed.

Fair use is a myth

Fair use is broken the same way patents are: by relying on a judge to determine what is and isn't valid, an enormous gulf of legal uncertainty is created. And when there is legal uncertainty, there is an opportunity for the weak to be oppressed by the strong.

Fair use needs reform. Either remove it entirely or codify it, but don't leave us with this ambiguity that extends from mere references to the sum total of 99% of a target work.

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Normal people would think so, but then the law is so poorly written and not actually enforced on corporations we pretty much have to suck it up and accept it or build a better service... that will need 15 rounds of funding just to hold off the pointless lawsuits designed to kill this new 'Boston Strangler' out to destroy the media cartels.

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I was wondering that myself. A read of 512(a) and especially (a)(2) may lead to that result--that these agreements place Yourube (typo, but I like it) outside the definition of service provider and unqualified to claim a safe harbor defense.

Not sure if we can totally blame YouTube. It seems more like the colatoral you get when rights owners are allowed to set the practicality of how there work is used. As part of the wider contact that YouTube/universal entered into, universal managed to dump the fair use provision. Think about locked down e-readers that don't allow you to make copies of public domain works. Which is of course one of the reasons that legacy companies should nit be allowed unfettered access to the legislative process

correction

It is time to campaign for fixed IP addresses for fixed domestic Internet connections. This would allow families, friends, and other small groups of people to set up private networks for private communications and sharing. These networks can be protected by public key encryption to identify who is connecting to a private machine.
Such networks are not a replacement for publication services like YouTube, Flikr, and Gmail. It would however make it easier to keep separate private and limited communications from publication for public consumption.
Small world models suggest that such networks can achieve a large coverage with low numbers of relays between machines.
However I can see the content Industries and governments fighting such networks, as they are much more difficult to monitor and censor., as the central choke points are removed, including DNS, as for private connections IP addresses can be exchanged and put in the hosts file.

They can only if it is not dmca

If the video was taken down by youtube and not flagged via third party dmca then they don't have to repost it. The content id flagging is different possibly. But a court might see the content ids as a third party provided info and rule that these takedowns must be treated the same way.

NewTube

It's obvious YouTube has been compromised. We need a new one. So maybe not "NewTube"... but what is going to be the "next" YouTube and how are we going to prevent the (c) industry to get a little bit too friendly with them?

LiveLeak? DailyMotion? Any suggestions?

Don't look at Kim Dotcom; he's also of the here's-an-API-and-delete-what-you-want-and-if-it-turns-out-to-be-wrong-there-is-no-penalty-whatsoeve r variety.

Re: NewTube

what is going to be the "next" YouTube and how are we going to prevent the (c) industry to get a little bit too friendly with them?

I don't think that goal is likely or necessary. I think there will be a continual waxing and waning. The next big site will then turn into either the next YouTube (on the content industry's side) or the next Veoh (sued into oblivion). Then, repeat.

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The question has been answered.

You have NOT answered this question. If you believe you have posted an answer, then please provide the link to your post. Otherwise, please just answer the question and stop pretending like you did. Thanks!

Mike is absolutely right. This is quite literally what the guy said: "But until [an amicable outcome based on a mutually agreed definition of fair use] occurs, [...] I exert my copyright rights and explicitly deny Techdirt permission to use any content owned by [redacted]. If such use does occur in future, [...] I consider such use a breach of copyright."

He didn't deny Techdirt the right to use content that wasn't "too much." He denied Techdirt the right to use any content whatsoever. And he explicitly said that any use is "a breach of copyright" - whether "too much" or not.

So, given the fact that "too much" obviously has nothing to do with fair use, what do you think "too much" means?

I, like everyone else who speaks English, think it means "too much for my liking." He clearly (and falsely) believes it's an infringement of copyright unless he thinks it's fair use. (For those watching at home: whether a copyright holder believes something is "fair use" is completely irrelevant. A use is fair, or it isn't, and the copyright holder's opinion matters not one iota.)

Otherwise, why even ask for "a mutually agreed definition of fair use?" (Much less demand it, as he does here?) The obvious answer is that he believes fair use is a kind of "gentleman's license."

Something you seem to believe, too. After all, you called this email "negotiations [...] over the scope of [Techdirt's] nonexclusive license." Despite the fact that the word "license" doesn't appear anywhere in his email, and the "negotiations" are over the "definition of fair use."

This attitude, by the way, is not uncommon in publishing circles (or so my grunt-level journalist friends tell me). And it shows - as if there were any doubt whatsoever - that Mike is right, and you are wrong.

Which is not a big deal. But the fact that you are so clearly wrong, yet insist you are right... that you claim your opponent hasn't answered questions which he absolutely has... that you deliberately misinterpret plain English, in order to put words in peoples' mouths... that you deliberately misstate and mislead, while accusing your opponent of being dishonest...

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By the way, I know for a fact that you will not provide a link to the post where you answered this question because you have not in fact answered it. And I know for a fact that you will not answer the question because you know I have a good point and you can't stand it.

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Can you give the link, which Mike claims exists, where Mike actually answered this question? Of course not. Can you admit that Mike is lying and that he knows for a fact that he did not answer the question yet is now pretending that he did? Of course not.

One simple link and you and Mike can prove me wrong. I know for a fact that that link will never be produced and that that answer will never be given. THAT'S how desperate Mike is. It's awesome fun! I love this place. Mike's dishonesty is boundless.

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Can you give the link, which Mike claims exists, where Mike actually answered this question?

I've quoted it. You either didn't read it, ignored it, or chose to misunderstand it. Karl linked to it and quoted it again. I expect you'll do the same thing again. He also explained to you again (which makes at least three times now) what it means and why you're wrong.

And you haven't answered my question. What quote are you using as the basis for what you think the guy meant by "too much"?

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What quote are you using as the basis for what you think the guy meant by "too much"?

I know, right?

I mean, one of Average Joe's little propaganda tricks is to selectively use legal terminology, when that terminology has the desired appeal to emotion. (See his description of rights holders as "victims" of infringement, or his insistence that copyright is a "right," but human rights are a "privilege.")

But in this case, even the legal definition doesn't support his claim. Arguing that someone quoted "too much" isn't arguing against fair use, it's arguing against de minimis.

Any first-semester law student knows the difference, and if Mike claimed anything even remotely similar, you know Joe would be frothing at the mouth about it, calling Mike a liar, saying he should do his research, etc. etc. ad nauseam.

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I think I've decided on the "trolling on purpose" explanation for Joe's behavior, rather than "actually thinks he's right"

When Joe was actually making sane arguments (still legalistic, but at least sane), then I think it was a good thing that people give him the benefit of the doubt.

But this discussion has absolutely shown his true colors. And they are not good. At this point, he is just trolling.

And, frankly, it puts all of his previous (even sane) comments in doubt. I have debated him at length before, and found him frustrating for precisely the same reasons as he is being a troll now.

The outright denial of what plain-English phrases actually say is nothing new. For example, he said that the ex parte seizures of domain names are not prior restraint, and relies on Arcara and no other ruling for that opinion.

Now, Arcara says, explicitly, that it does not apply to situations where "an advance determination that the distribution of particular materials is prohibited." Yet he claimed - and still claims - that Arcara applies in cases (such as the DOJ seizures) where there was nothing other than "an advance determination that the distribution" of infringing "materials is prohibited."

This was the very first argument I had with average_joe. And he gave some rational (though completely wrong) reasons for his opinions.

Because he was rational, I gave him the benefit of the doubt. Needless to say, it was displaced. Every single ruling that he predicted - without exception - was rejected by the various courts of law.

Still, I gave him the benefit of the doubt (again), and assumed that he was just new to the intricacies of the law. (Which is odd, considering that he was a law student, and I was not.)

I now see that I was wrong about him all along. Since then, he has quoted a lot of cases that directly contradict his opinions, and never once admitted that he was wrong. Instead, he argues semantics about what "is" is, makes logical leaps that nobody in their right mind would make, and insults everyone who disagrees with him (including myself, though I let it slide). All the while situating himself as a "teacher," and me as "student."

Of course, he has never "taught" me anything other than the fact that he is wrong. Not one single argument he made has ever held water in the real world.

And that, I think, is why he is being such an asshole now. It is a textbook case of psychological projection.

He claims that Mike never answered his questions. In fact, Mike has answered every single question that Joe asked. But Joe has not answered a single question that Mike asked in return.

Joe calls Mike "dishonest," when Joe twists Mike's words to claim that Mike said something he didn't. Or just outright lies about what Mike said.

Joe falsely accuses Mike of using "sock puppets." Yet he himself admits to posing as multiple different users on this site, expressly so that people won't be able to know it's the same person posting his opinions.

Joe disparages Mike for not being "moral" enough. Yet Joe thinks that the ICE seizures against Rojadirecta and Dajaz1 are morally justified; but that Aaron Schwartz brought everything upon himself, and deserves everything that happened to him.

Joe calls Mike a "psychopath," but is so self-absorbed that he thinks Techdirt posts stories merely so that stories with his idiotic comments can "fall off the sidebar." He is so self-absorbed and egotistical, that he believes Mike not answering him that day is "running away" (and not, say, taking care of his actual business, or simply deciding you're not worth it.)

It's pretty obvious at this point. Joe is an immoral, obsessive stalker; one who might have been informative long ago, but now needs to be put down like a mangy dog.

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I'm bookmarking this most insightful comment for posterity. :)

I'm pretty sure that he once stated that he had offspring (or was that OOTB?). God, I hope they end up growing up with their own opinions (and willing to do their own research) instead of believing all the force-fed drivel he's teaching them now.

Re:

Standard Mike Masnick bullshit deflection: (1) "I answered that question!" but then refuses to say explicitly what that answer is; (2) "I answered that question!" but then refuses to provide a link to where he purportedly answered the question.

What's the answer, Mike???? I DARE you to repeat it. Or are you really trying to NOT answer the question and lying to everyone so that they think you did? Hmmmm... This is so hard! No one can tell, Mike. You're lies are safe. No worries.

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One more post and this falls off the sidebar. You almost made it, Mike!

I honestly think you may be suffering from delusions of grandeur. You honestly think that Mike is posting new stories to Techdirt, the blog that he posts dozens of stories to every day, just to push /this/ conversation off the front page?

/If/ I were Mike and /you/ were actually someone who mattered, rather than a childish anonymous troll, I would be pointing everybody and their grandfathers to this thread to show off what a moronic little child you are, with the debating skills of a 5 year old.

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It's off the sidebar now--you're safe! You made it! Nice touch with the sockpuppets and such here, Mikey. Always a blast when you get this desperate.

The fact remains that you're too scared to answer a simple question about a point on a silly matter that's irrelevant in the grander scheme of things. The fact remains that you lied and said that you had answered the question when you know for a fact that you have not. And the fact remains that you're an incredibly desperate man who has not an honest cell in his body.

If you think there's any question I'm avoiding, ask me it here and I will give you an honest answer I can. In other words, I'll do the opposite of what you do. Again... One link and you can prove me wrong. So simple!

P.S. Just FYI, I was going to leave you alone for a while, but this thread has made me decide to crank it up a notch. Kudos! Your dishonesty and desperation only feeds me. Want me to leave? Engage me on the merits and stop with the silly games. It's so simple. Until then, I'm camping out here. I'll think I'll compose a list of Mikey's greatest hits to share with everyone. That'll be fun! Toodles!

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Just FYI, I was going to leave you alone for a while, but this thread has made me decide to crank it up a notch. Kudos!

Oh, you're going to start spamming Techdirt stories that have absolutely nothing to do with copyright, or fair use, or the subject at hand? Ask no substantive questions, insult Mike personally, and lie some more? Ruin any kind of intelligent debate with your childish demands for attention?

Re: Re:

The fact remains that you're too scared to answer a simple question about a point on a silly matter that's irrelevant in the grander scheme of things.

Mike answered it. Nasch answered it. Karl answered it. Anyone can see that. Anyone reading this thread comes to the conclusion that you are a sniveling clueless troll with the IQ of an inbred chimp.

Again... One link and you can prove me wrong. So simple!

He did. Nasch did. Karl did. And you ignored them and became even more intransigent.

And then you puked this:

P.S. Just FYI, I was going to leave you alone for a while, but this thread has made me decide to crank it up a notch. Kudos! Your dishonesty and desperation only feeds me. Want me to leave? Engage me on the merits and stop with the silly games. It's so simple. Until then, I'm camping out here. I'll think I'll compose a list of Mikey's greatest hits to share with everyone. That'll be fun! Toodles!

Mike stupidly actually did engage with you, rather than sticking to his promise not to. He responded to your question, and proved you wrong. And then you lied and moved the goalposts. And then you asked a really dumb question that anyone with more than 3.5 brain cells could see was stupid, and Mike, Nasch and Karl /still/ answered you... and then you claim if they only engaged with you you'd quiet down?

So, they /did/ engage with you. They did /everything/ that you asked, and they did so politely and with respect, whereas your comments were full of strawmen and ad hominem attacks... and then you /promise/ to be even more a complete blundering asshole?

And you think this makes them want to engage with you more?

Are you completely idiotic or is this just an off day?

I've seen a lot of trolls in my life, but you may be one of the most ridiculous yet.

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AJ hasn't responded yet. If I understand his logic from the comment above, by not responding within an hour or so, it means we have all won, and AJ has lost and run away because he's too scared to debate us.

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Mike answered it.

Nope. Mike did not provide any explanation for the part of the email where he says he contacted Mike because he thought Mike used "too much." If this guy really thinks that ANY use requires permission, then he would not have said "too much." He would have said, "I contacted you because you used SOME/ANY of my work." It's not hard.

You cannot link to nor quote where Mike specifically addresses the "too much" language because he didn't.

Surprise. Surprise. Mike ran away and sent in the B-team. Shocker. You didn't address the "too much" language and you know it. It's a simple point, and you could have admitted I had a point. Yet you're too dishonest to even admit a minor point on a nonissue. That's how fake and desperate you are. It's truly amazing. It's what keeps me coming back for more.

Poor little Mike. Can't even provide a link to the post where he supposedly answered my question. LOL! Same old bullshit routine. When he knows I've got him, he gets really mad and then demands that he's answered the question. When asked to repeat the answer or link to it, he runs away. He never just answers the question. The dishonesty and desperation keep me coming back for more. I love this place. I never imagined that so great of a douchebag could even exist. It's AWESOME fun. Thanks, Mikey. The laughs are priceless.

Why is it that the most moronic are the ones with the stupid opinions?

No, YouTube isn't obligate to post videos. However, a contract saying that YouTube can't post the videos is unenforceable. YouTube has the choice not to put up the videos, but the rights holder DOES NOT have the right to compel YouTube not to put them up. A contract that violates a provision of a law cannot be enforced.

And I'm pretty sure YouTube knows this. They are just extremely lawsuit phobic right now. They need to get to a better place both in finances and the market so that they have the leverage to pull this off. They need to make it where it would cost most companies too much in lost revenue to sue them.

In the meantime, this is why I tell people to adblock YouTube. Either stand up for our rights, or lose revenue. If enough people did this, YouTube would have no choice but to do the right thing. But, currently, apparently enough people don't care to make it worthwhile monetarily.

YOUTUBE DIRTY PRACTICES

There is PORN on youtube (if you know how to find it).Example, watch "chronicles of a french family".Yet they won't allow other users to upload much much more mild stuff (which doesn't even show penetration) saying that it violates the communities guidelines....They are full of shit. It's obvious that they get paid from the uploaders of certain vids, while systematically take down the average Joe without allowing any deal with Joe...Motherfuckers.

And cameron gomez

Blue macaws Blu (Jesse Eisenberg), Jewel (Anne Hathaway) and their three children are comfortably settled in the city -- perhaps too comfortably. Jewel fears that the children are becoming more like humans than birds. After learning that she and Blu may not be the last blue macaws after all, Jewel